Determination of the Constitutional Court of the Russian Federation of September 24, 2012 N 1800-O "At the request of the Sverdlovsk District Court of the city of Kostroma about checking the constitutionality of part two of Article 43 of the Law of the Russian Federation" On Pension Provisions for Persons Who Have Served Military Service, Service in Internal Affairs Bodies, State Fire Service, bodies for control over the turnover of narcotic drugs and psychotropic substances, institutions and bodies of the penal system, and their families "
CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION
DEFINITION
INQUIRY Sverdlovsk District Court of Kostroma on the constitutionality of part two of Article 43 of the RF Law "On pension security of those performing military service, service in the internal affairs bodies, the state fire service, bodies for control over trafficking of narcotic drugs and psychotropic substances, INSTITUTIONS AND BODIES OF THE CRIMINAL-EXECUTIVE SYSTEM AND THEIR FAMILIES "
Constitutional Court Of the Russian Federation as part of the Chairman V.D. Zorkin, judges K.V. Aranovsky, A.I. Boytsova, N.S. Bondar, G.A. Gadzhieva, Yu.M. Danilova, L.M. Zharkova, G.A. Zhilina, S.M. Kazantseva, M.I. Kleandrova, S.D. Knyazeva, A.N. Kokotova, L.O. Krasavchikova, S.P. Mavrina, N.V. Melnikova, Yu.D. Rudkina, N.V. Selezneva, O.S. Khokhryakova, V.G. Yaroslavtsev,
Having considered the issue of the possibility of accepting requests of the Sverdlovsk District Court of the city of Kostroma for consideration at a session of the Constitutional Court of the Russian Federation,
installed:
1. In its requests to the Constitutional Court of the Russian Federation, the Sverdlovsk District Court of the city of Kostroma disputes the constitutionality of part two of Article 43 of the Law of the Russian Federation of February 12, 1993 N 4468-1 "On Pension Provisions for Persons Who Have Served Military Service, Service in Internal Affairs Bodies, the fire service, the bodies for the control over the circulation of narcotic drugs and psychotropic substances, institutions and bodies of the penal system, and their families ", acting in the version that entered into force on January 1, 2012 and provides that the monetary allowance established by part one of this article, taken into account when calculating the pension from January 1, 2012 in the amount of 54 percent and, starting from January 1, 2013, annually increases by 2 percent until reaching 100 percent of its size; Taking into account the level of inflation (consumer prices) by the federal law on the federal budget for the next financial year and the planning period, the specified annual increase may be established for the next financial year in an amount exceeding 2 percent.
As follows from the submitted materials, citizen V.N. has applied to the Sverdlovsk District Court of the city of Kostroma with claims concerning the revision of the amount of pensions. Tarasenko, who served in military service from August 1, 1975 to December 19, 2000 and is currently receiving a seniority pension, as well as citizen A.M. Shutov, a pensioner of the Ministry of Defense of the Russian Federation since 1996.
Sverdlovsk District Court of the city of Kostroma, having come to the conclusion that the second part of Article 43 of the Law of the Russian Federation "On Pension Provisions for Persons Who Did Military Service, Service in Internal Affairs Bodies, State Fire Service, Control Bodies" trafficking in narcotic drugs and psychotropic substances, institutions and bodies of the penal system, and their families "does not comply with Articles 1, 2, 15, 17 (parts 1 and 2), 18, 19 (parts 1 and 2), 54 (part 1 ) and 55 (parts 2 and 3) of the Constitution of the Russian Federation, appealed to the Constitutional Court of the Russian Federation with a request to check its constitutionality, suspending the proceedings in the case of V.N. Tarasenko by a ruling dated June 5, 2012, and in the case of A.M. Shutov - by definition of June 25, 2012.
According to the applicant, the contested legal provision contradicts the Constitution of the Russian Federation insofar as it applies to military personnel who entered military service before January 1, 2012, and pensioners from among these persons, thereby reducing the level of monetary allowance taken into account for calculating the pension, compared to previously established norms.
2. The Constitution of the Russian Federation, proclaiming the Russian Federation a social state, which protects the work and health of people, provides state support for family, motherhood, fatherhood and childhood, disabled and elderly citizens, develops a system of social services, establishes state pensions, benefits and other guarantees social protection (Article 7, part 2), guarantees everyone social security by age, in case of illness, disability, loss of a breadwinner, for raising children and in other cases established by law (Article 39, part 1).
The constitutional right to social security also includes the right to receive a pension in cases and amounts determined by law. At the same time, the Constitution of the Russian Federation does not directly provide for specific conditions and procedure for the provision of pensions - state pensions and social benefits, in accordance with its article 39 (part 2), are established by law (Resolution of the Constitutional Court of the Russian Federation of March 18, 2004
N 6-P). Determining in the law the legal grounds for the appointment of pensions, their amounts, the procedure for calculating and paying, the legislator has the right to establish various pension systems based on the specifics of the work or service activities carried out by citizens.
The federal legislator, acting within the powers granted to him, in pursuance of the Constitution of the Russian Federation, has enshrined in the Law of the Russian Federation "On Pension Provisions for Persons Who Have Served Military Service, Service in Internal Affairs Bodies, State Fire Service, Bodies for Control over the Turnover of Narcotic Drugs and Psychotropic Substances , institutions and bodies of the penal system, and their families "the grounds and conditions for the exercise of the right to a pension of the persons indicated in it, which differ in similar parameters from labor pensions: for them, in particular, such a form of state social security as a long-service pension is provided for years, which is appointed in the presence of appropriate length of service, regardless of the age of military personnel, and the financing of pensions is carried out at the expense of the federal budget (definitions of the Constitutional Court of the Russian Federation of June 24, 2008 N 437-O-O, of September 23, 2010 N 1152-O- Oh, dated May 26, 2011 N 605-O-O and dated September 29, 2011 N 1040-O-O).
Pensions for length of service and disability assigned to persons who served in military service, as well as pensions in the event of the loss of a breadwinner to members of their families, are calculated from the monetary allowance, which, in accordance with part one of Article 43 of the Law of the Russian Federation "On Pension Provision of Persons military service, service in the internal affairs bodies, the State Fire Service, the bodies for control over the circulation of narcotic drugs and psychotropic substances, institutions and bodies of the penal system, and their families "are accounted for in the manner determined by the Government of the Russian Federation, the salary for a military position, military rank salary (excluding salary increases for service in remote, high-mountainous areas and in other special conditions) and monthly seniority bonus, including payments in connection with the indexation of monetary allowances. At the same time, the concept of "monetary allowance for calculating a pension for servicemen" differs from the concept of "monetary allowance for military personnel" defined by the legislation on the status of servicemen, and has an independent normative meaning for the purpose of calculating pensions and its revision for military pensioners (Determination of the Constitutional Court of the Russian Federation dated December 14, 2004 year N 429-O). This conclusion is also due to the peculiarities of the legal status of servicemen who, unlike those dismissed from military service, continue to perform duties related to the need to fulfill their assigned tasks in any conditions, including those associated with a significant risk to life and health, as well as carry out activities aimed at continuous professional development and improvement of their professional training.
3. On January 1, 2012, the Federal Law of November 7, 2011 N 306-FZ "On monetary allowances for servicemen and the provision of separate payments to them" came into force. Established by this Federal Law, the new system of monetary allowances for persons doing military service, providing for a significant increase in the salary of the military personnel and changing the composition of monthly and other additional payments included in the monetary allowance, is aimed at ensuring that the level of remuneration of military personnel corresponds to their high social status, as well as high-quality and the effective performance of military service duties by military personnel, encouraging them to constantly improve in the profession.
Simultaneously with the implementation of this reform, provisions were introduced into the legislation on pensions for persons dismissed from military service, establishing new rules for accounting for monetary allowances for calculating pensions. According to these rules, from January 1, 2012, the determination of the size of the pension to persons who served in the military and their family members is carried out on the basis of the salaries for military posts and salaries for military ranks established by the current legislation and taken into account in the amount of 54 percent included in the monetary allowance for calculating pensions. , as well as the amount of monthly seniority allowance. At the same time, from January 1, 2013, the monetary allowance for calculating pensions for persons who did military service and their family members in order to achieve 100 percent of its size is subject to an annual increase of 2 percent or in a larger amount (depending on the inflation rate) in accordance with the federal the law on the federal budget for the next financial year and planning period.
3.1. As the Constitutional Court of the Russian Federation has repeatedly pointed out, the change in the method of determining the amount of certain monetary payments - while observing the constitutional principles of justice, equality, proportionality, as well as stability and guarantee of the rights of citizens - is in itself the prerogative of the legislator (Resolution of June 19, 2002 No. 11-P, dated November 27, 2008 N 11-P, definitions dated July 11, 2002 N 191-O, dated May 16, 2007 N 375-O-P, etc.), while changing the previously established conditions of pension provision by the legislator should be carried out in such a way that the principle of maintaining citizens' confidence in the law and actions of the state is observed, which presupposes the preservation of reasonable stability of legal regulation and the inadmissibility of making arbitrary changes to the existing system of norms (Resolutions of May 24, 2001 N 8-P, of January 29, 2004 N 2-P, etc.).
By reducing the amount of monetary allowance taken into account when determining the amount of pensions to persons dismissed from military service from 100 percent to 54 percent, the legislator provided that the calculation of pensions is carried out on the basis of a new - higher - monetary allowance, thereby ensuring an increase in the amount of pensions received by citizens. When preparing the draft federal law "On monetary allowances for servicemen and providing them with separate payments", as follows from the explanatory note to it, it was planned to increase pensions by an average of 50 - 70 percent compared to those calculated according to the norms of the previous legislation.
With the introduction of a new legal regulation concerning the accounting of monetary allowances for calculating pensions to persons who served in the military and members of their families, in accordance with the principle of stability of legal regulation, it is guaranteed (Part 1 of Article 5 of the Federal Law "On Monetary Allowances for Servicemen and Granting Individual Payments" ) maintaining the level of their pension provision achieved by January 1, 2012. This norm, in particular, enshrines the preservation of the amount of pensions established in accordance with the legislation of the Russian Federation, which was in force until the date of entry into force of the Federal Law "On monetary allowances for military personnel and the provision of separate payments to them", in the event of a the entry into force of the specified Federal Law and the Federal Law of November 8, 2011 N 309-FZ "On Amendments to Certain Legislative Acts of the Russian Federation and the Recognition of Certain Provisions of the Legislative Acts of the Russian Federation as Invalidated in Connection with the Adoption of the Federal Law" On Pay providing them with separate payments "and the Federal Law" On social guarantees to employees of the internal affairs bodies of the Russian Federation and amendments to certain legislative acts of the Russian Federation ".
Along with this, the rules for calculating pensions, applied from January 1, 2012, provide for a mechanism for a gradual annual increase in the amount of monetary allowance taken into account when calculating pensions to persons who served in the military and their families, and are aimed at increasing the size of such pensions.
Thus, the contested norm - despite the decrease in the percentage of monetary allowance provided for by it, taken into account when calculating pensions to persons dismissed from military service and members of their families - is aimed at increasing the absolute size of the said pensions in monetary terms from 1 January 2012. This fully complies with the rule stipulated in Article 1 of the Agreement on the procedure for pensions for military personnel and their families and state insurance of military personnel of the member states of the Commonwealth of Independent States dated May 15, 1992 that the level of pension provision for military personnel and their families established by the legislation of the member states in accordance with the Agreement on social and legal guarantees of military personnel, persons dismissed from military service, and members of their families of February 14, 1992, cannot be lower than the level established earlier by legislative and other normative acts of the former USSR, as well as the interpretation of the above provision , formulated by the Economic Court of the Commonwealth of Independent States, which in its decision N 01-1 / 2-08 of February 6, 2009 indicated that for assessing the level of pension provision for military personnel, the qualitative state of their rights in the field of pension provision matters, for determining which it is necessary to take into account the conditions, norms and procedure for granting a pension established by national legislation.
Since the uncertainty in the question of the constitutionality of part two of Article 43 of the Law of the Russian Federation "On Pension Provisions for Persons Serving Military Service, Service in Internal Affairs Bodies, State Fire Service, Bodies for Control over the Turnover of Narcotic Drugs and Psychotropic Substances, Institutions and Bodies of Penitentiary system, and their families "is absent, requests of the Sverdlovsk District Court of the city of Kostroma cannot be accepted by the Constitutional Court of the Russian Federation for consideration.
Based on the foregoing and guided by paragraph 2 of part one of Article 43, part one of Article 79, Articles 96 and 97 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", the Constitutional Court of the Russian Federation
Defined:
1. To recognize the requests of the Sverdlovsk District Court of the city of Kostroma not subject to further consideration at the session of the Constitutional Court of the Russian Federation, since the resolution of the issue raised by the applicant does not require the issuance of the final decision provided for in Article 71 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation" in the form of a resolution.
2. The determination of the Constitutional Court of the Russian Federation on these requests is final and not subject to appeal.
The chairman
The Constitutional Court
Russian Federation
The Constitutional Court of the Russian Federation, composed of Chairman V.D. Zorkin, judges M.V. Baglaya, N.S. Bondar, G.A. Gadzhieva, Yu.M. Danilova, L.M. Zharkova, G.A. Zhilina, S.M. Kazantseva, M.I. Kleandrova, A.L. Kononova, L.O. Krasavchikova, N.V. Selezneva, A.L. Plums, V.G. Strekozova, O.S. Khokhryakova, B.S. Ebzeeva,
having heard in the plenary session the conclusion of judges N.C. Bondar, G.A. Hajiyeva and O.S. Khokhryakova, who conducted, on the basis of Article 41 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", a preliminary study of the complaint of citizen P.F. Enborisova,
installed:
1. In the complaint of the citizen P.F. Enborisova contested the constitutionality of paragraph 8 of Article 14 of the Federal Law of December 17, 2001 "On labor pensions in the Russian Federation ", according to which the amount of the basic and insurance part of the old-age labor pension cannot be less than 660 rubles per month. In the applicant's opinion, the said legal provision, which allowed her to establish an old-age labor pension below the level living wage in the constituent entity of the Russian Federation, where she lives, belittles the dignity of the person, in fact deprives her of the right to life and thereby contradicts Articles 15 (part 4), 18, 20 (part 1) and 21 (part 2) of the Constitution of the Russian Federation, as well as article 11 of the International Covenant on Economic, Social and Cultural Rights. As follows from the materials presented, citizen P.F. Enborisova, born in 1929, is a disabled person of group II and has more than 27 years of total work experience, including the years of the Great Patriotic War. Prior to the adoption of the Federal Law "On Labor Pensions in the Russian Federation", the applicant received an old-age pension first in accordance with paragraph 15 of the Regulations on the procedure for the appointment and payment of state pensions (approved by Resolution of the Council of Ministers of the USSR of August 3, 1972 No. 590), then according to the norms of the Law RSFSR of November 20, 1990 "On state pensions in the RSFSR" (with subsequent amendments and additions). In connection with the entry into force of the Federal Law "On Labor Pensions in the Russian Federation" (January 1, 2002), the old-age labor pension of P.F. Enborisova was calculated in the amount of 771 rubles. 09 kopecks (its size at the time of consideration by the Constitutional Court of the Russian Federation of this complaint, taking into account periodic indexations, is 1185 rubles 36 kopecks).
According to the Ministry of Social Relations of the Chelyabinsk Region (letter dated December 29, 2004), on the basis of the Federal Law dated July 17, 1999 "On State social assistance"and the decree of the governor of the Chelyabinsk region of December 24, 2003 N 549" On the procedure for the payment of a one-time social benefit to low-income citizens and citizens in difficult life situation, at the expense of the regional budget "PF Enborisova, as belonging to the category of poor living alone pensioners, whose average per capita income is lower than the subsistence level established in the Chelyabinsk region, one-time cash, food and other types of assistance were provided.
P.F. Enborisova on the recognition of illegal actions of the territorial administration of the Pension Fund of the Russian Federation of the city of Yuzhnouralsk, which refused to accrue a retirement pension that would correspond to the subsistence level in the Chelyabinsk region (at the time of the consideration of the case it was 1,456 rubles), the Yuzhnouralsk city court of the Chelyabinsk region was left without satisfaction. The Judicial Collegium for Civil Cases of the Chelyabinsk Regional Court confirmed the decision of the court of first instance, referring to the fact that the current pension legislation does not provide for the calculation of the size of the old-age pension based on the subsistence minimum in the constituent entity of the Russian Federation.
Thus, the subject of consideration by the Constitutional Court of the Russian Federation on this complaint is the provision of paragraph 8 of Article 14 of the Federal Law "On Labor Pensions in the Russian Federation", as allowing for persons who have acquired the right to receive an old-age labor pension prior to the entry into force of the said Federal Law, with work experience required to receive an old-age labor pension in full, as well as persons with group II disabilities, labor veterans and home front workers, the establishment of the amount of the basic part and the insurance part of the old-age labor pension in an amount less than the subsistence minimum level of pensioners in subject of the Russian Federation.
2. The Constitution of the Russian Federation proclaims the Russian Federation a social legal state, which guarantees equality of human and civil rights and freedoms, and whose policy is aimed at creating conditions that ensure a decent life and free human development (Article 1, Part 1; Article 7, Part 1; Article 18; article 19, parts 1 and 2).
The constitutional goals of the social policy of the Russian Federation predetermine the duty of the state to take care of the well-being of its citizens, their social security; a person, if due to age, health or other reasons beyond his control, cannot work and does not have income to ensure a living wage for himself and his family, he has the right to count on receiving appropriate assistance, material support from the state and society (Resolution Of the Constitutional Court of the Russian Federation of December 16, 1997 N 20-P in the case of checking the constitutionality of the provisions of paragraph six of paragraph 1 of Article 28 of the Law of the Russian Federation "On employment of the population in the Russian Federation"). Therefore, giving everyone the right to work by their own, freely disposing of their abilities to work for any economic activity not prohibited by law, to ensure their livelihood, the Constitution of the Russian Federation also guarantees social security by age, in case of illness, disability, loss of a breadwinner, for raising children and in other cases established by law (Article 34, Part 1; Article 37, Part 1; Article 39, Part 1).
Legislative consolidation of the relevant living standards is, within the meaning of Articles 7, 39 (parts 1 and 2), 71 (paragraphs "a", "c", "e") and 76 (part 1) of the Constitution of the Russian Federation, the subject of the jurisdiction of the Russian Federation, those. federal function. The obligation of the state to establish, within the framework of the regulation and protection of human and civil rights and freedoms, equal opportunities for maintaining unprotected categories of the population throughout the territory of the Russian Federation, however, does not exclude the right of the constituent entities of the Russian Federation and municipalities by virtue of Articles 72 (clause "g" of Part 1) , 76 (part 2), 130 (part 1) and 132 of the Constitution of the Russian Federation, based on the financial and economic opportunities available to them, to provide additional forms of social protection, including increased pension provision, for the population of the respective territories at the expense of their own budgetary resources, if such decisions do not impose additional obligations on the Russian Federation.
These constitutional prescriptions, binding the state with social obligations to the population, in the system of norms of the Constitution of the Russian Federation, primarily its Articles 2 and 21 (Part 1), predetermine the legal measure of the claims of individuals who, due to objective circumstances, cannot independently achieve material well-being, to guarantee material security at the level necessary to meet basic life needs, and presuppose the establishment of an appropriate regulatory mechanism for their satisfaction - in accordance with the economic possibilities of society at this stage of its development.
2.1. An important element social security, the purpose of which is to provide those in need - through the creation of a system for accumulating the results of their independent labor activity and fair redistribution of public material resources - means of subsistence, is a pension provision.
The federal legislator, whose competence the Constitution of the Russian Federation refers to the establishment of the pension system (Article 39, part 2), has sufficient discretion in determining the legal basis, conditions for the appointment and procedure for calculating pensions. At the same time, he must correlate the decisions made with the constitutionally significant principles of pension provision and act within the framework of the international legal obligations of the Russian Federation (Article 15, Part 4; Article 17, Part 1 of the Constitution of the Russian Federation), arising, in particular, from the Universal Declaration of Rights person, proclaiming the right of every person to social security and to the exercise of the rights necessary to maintain his dignity and for the free development of his personality in the economic, social and cultural fields through national efforts and international cooperation and in accordance with the structure and resources of each state (Article 22 ). In addition, the Russian Federation, as a party to the International Covenant on Economic, Social and Cultural Rights, recognizes the right of everyone to an adequate standard of living for him and his family, including adequate food, clothing and housing, and to continuous improvement of living conditions, and undertakes to take appropriate measures to ensuring the exercise of this right, recognizing the importance in this respect of international cooperation based on free consent (art. 11, para. 1). Similar provisions are enshrined in the Charter of Social Rights and Guarantees of Citizens of Independent States (Article 40) and the Charter of Older Persons adopted by the Interparliamentary Assembly of States Parties to the Commonwealth of Independent States.
The content of the cited international acts and the corresponding provisions of the Constitution of the Russian Federation determines the adoption as a constitutional and legal criterion for legislative regulation of pension relations, the creation of conditions that guarantee the dignity of the individual. Recognition of the dignity of the individual, in accordance with the legal position of the Constitutional Court of the Russian Federation, set out in decisions of May 3, 1995 N 4-P in the case of checking the constitutionality of Articles 2201 and 2202 of the Code of Criminal Procedure of the RSFSR and of January 15, 1999 N 1-P in the case of verification of the constitutionality of the provisions of the first and second parts of Article 295 of the Criminal Procedure Code of the RSFSR - the basis of all human rights and freedoms and a necessary condition for their existence and observance; the state, by virtue of Article 21 of the Constitution of the Russian Federation, is obliged to protect the dignity of the individual in all spheres, which confirms the priority of the individual and his rights.
The legislator, correlating his activities with the principle of recognition of the dignity of the individual in all areas of legal regulation and taking into account that it is the retirement pension, by its legal nature and purpose, is aimed at compensating for losses from the objective impossibility of continuing to work, should, in turn, determine the minimum amount an old-age retirement pension, which ensures at least such a standard of living that, taking into account all other measures of social support provided to a specific category of pensioners, the very possibility of a decent life of a citizen as a pensioner, the exercise of other rights and freedoms proclaimed by the Constitution of the Russian Federation would not be questioned personality, and thus would not diminish his human dignity.
2.2. Thus, from the above provisions of the Constitution of the Russian Federation and international legal acts that are an integral part of the Russian legal system, namely from the social obligations of the Russian Federation to the population enshrined in them and the corresponding legal claims of individuals who, due to objective circumstances, cannot achieve of incapacitated age, independently ensure a sufficient standard of living, it follows that the state is obliged to establish - based on the available economic resources - such a procedure for pension relations that would create real conditions for effective compensation of the corresponding persons for losses from natural (age) loss of the ability to work and self-sufficiency in the amount , which guarantees their general material security at the level necessary to meet basic life needs.
3. Realizing the obligations imposed on him by the Constitution of the Russian Federation and international legal acts to guarantee an adequate level of life support for socially unprotected categories of the population, the legislator adopted the Federal Law of October 24, 1997 "On the cost of living in the Russian Federation", directed, as follows from its preamble, to establish a legal basis for determining the subsistence minimum in the Russian Federation and its accounting when establishing state guarantees for the citizens of the Russian Federation to receive minimum monetary incomes and when implementing other measures of social protection of citizens of the Russian Federation.
Thus, the federal legislator has taken into account, among other things, ILO recommendation No. 131 "On benefits for disability, old age and survivorship," by virtue of which national legislation should establish the minimum amount of benefits for disability, old age and loss of breadwinner, so that in order to guarantee a minimum standard of living (paragraph 23), as well as the Charter of Social Rights and Guarantees of Citizens of Independent States, which provides for the need to determine the amount of the minimum pension based on the size of the system of minimum consumer budgets adopted in the state (Article 18).
Within the meaning of the provisions of Articles 1 and 2 of the Federal Law "On the Subsistence Minimum in the Russian Federation", the subsistence minimum is a cost estimate of the minimum set of food products, non-food products and services necessary to preserve human health and ensure his life in the Russian Federation as a whole and in the regions Russian Federation, and also includes mandatory payments and fees.
Of the named legal provisions, which are the normative legal concretization embodied in Articles 1, 2, 7, 17 (parts 1 and 2), 18, 21 (part 1), 39 (parts 1 and 2), 41 (part 1) and 45 ( Part 1) of the Constitution of the Russian Federation of social values, it follows that in the system of current legal regulation, the category of the subsistence minimum was chosen by the federal legislator as a criterion for determining a measure of social assistance to those in need, ensuring them a decent life and free development. This means that, in this capacity, the indicators of the subsistence minimum, determining the volume of the state's economic obligations to the citizen when establishing state pensions and social benefits, should be considered as an element of the normative content of the constitutional right to social security by age, the basis of which is pension provision; in any case, they act as a constitutional guideline for pension policy, given the lack of financial guarantees of pension provision at the moment.
According to the Federal Law "On the Subsistence Minimum in the Russian Federation", the category of the subsistence minimum includes the subsistence minimum in the whole of the Russian Federation, as well as the subsistence minimum in the constituent entities of the Russian Federation (Article 2); the value of the subsistence minimum per capita and for the main socio-demographic groups of the population as a whole in the Russian Federation and in the constituent entities of the Russian Federation is determined on a quarterly basis on the basis of the consumer basket and data from the federal executive body for statistics on the level of consumer prices for food, non-food products and services and the costs of mandatory payments and fees (paragraphs 1 and 2 of Article 3, paragraph 1 of Article 4).
At the same time, the consumer basket as a whole in the Russian Federation is formed on the basis of the average statistical indicators of consumption of food products, non-food goods and services by citizens of the Russian Federation, and in the constituent entities of the Russian Federation - taking into account natural and climatic conditions, peculiarities of food production, national traditions and local consumption patterns. food products, non-food products and services, the existing food structure based on the actual consumption of food in low-income families (paragraphs 1, 2 and 4 of article 3 of the Federal Law "On the subsistence level in the Russian Federation" and the provisions of Sections II and III that specify them Methodical recommendations on the definition of the consumer basket for the main socio-demographic groups of the population as a whole in the Russian Federation and in the constituent entities of the Russian Federation, approved by the Government of the Russian Federation of February 17, 1999 N 192, as amended on March 16, 2000).
Thus, within the framework of the current legal regulation, the subsistence minimum in the constituent entities of the Russian Federation, based on the differentiation of the minimum necessary costs of citizens depending on objectively determined indicators, is the most adequate expression of the minimum natural needs of the corresponding socio-demographic groups of the population and, at the same time, the minimum measure of socio-economic obligations the state to the population, implemented including through the system of pension relations.
4. To identify the real meaning of clause 8 of Article 14 of the Federal Law "On Labor Pensions in the Russian Federation", it is necessary to determine the place of this Federal Law in the system of legal regulation of social security provided to a specific category of citizens in need of social support, to which the applicant also belongs as having simultaneously several social statuses (pensioner, disabled person of group II, labor veteran, home front worker), taking into account the totality of material and in-kind social support measures that are provided for the relevant persons.
4.1. The historical and teleological analysis of the legislative regulation of pension relations indicates the manifestation in federal legislation of a tendency towards refusal to use the parameters of the subsistence level in determining the state-guaranteed volume of old-age retirement pension, both in the Russian Federation as a whole and in the constituent entities of the Russian Federation.
The RSFSR Law of November 20, 1990 "On State Pensions in the RSFSR" established the minimum old-age pension with a total length of service equal to that required for the appointment of a full pension, at the subsistence level (Article 17), Law of the Russian Federation of February 6, 1992 " On amendments and additions to the Law of the RSFSR "On state pensions in the RSFSR" - at the level of the minimum wage (Article 3), in accordance with the Federal Law of May 5, 1994 "On the procedure for indexing and recalculating pensions established in accordance with the Law RSFSR "On state pensions in the RSFSR" the minimum pension should not have been lower than the minimum wage (Article 4), and in accordance with the Federal Law of August 7, 2000 "On the procedure for establishing the amount of scholarships and social benefits in the Russian Federation" - not less than the amount established by federal law (Article 4).
The federal law of December 17, 2001 "On labor pensions in the Russian Federation" changed not only the procedure for determining the size of the old-age labor pension, but also its structure: according to paragraph 2 of its Article 5, the old-age labor pension may consist of a basic, insurance and funded parts ... In this case, the establishment of the funded part of the labor pension is carried out only if there are funds accounted for in the special part of the individual personal account of the insured person (paragraph 3 of Article 6), and therefore, this rule does not apply to persons who acquired pension rights before the entry into force of the said Federal Law, those. before January 1, 2002.
As follows from paragraph 8 of Article 14 of the Federal Law "On Labor Pensions in the Russian Federation" in conjunction with its Articles 2 and 7, paragraphs 1 and 5 of Article 14, the legislator, using as general rule the principle of combining the results of independent labor activity of citizens, the nature and duration of which determine the amount of payments within the insurance part of the old-age labor pension, and state pension assistance within the size of its basic part, in any case - if you have five years of insurance experience, regardless of the amount of insurance premiums - guarantees to each person entitled to an old-age labor pension the amount of pension payments in the amount of not less than 660 rubles. This amount is essentially the minimum level of material old-age pension that a citizen can count on. Along with this, in order to gradually approximate the size of the basic parts of the old-age labor pension to the size of the subsistence minimum of a pensioner, the legislator provided in paragraph three of clause 6 of Article 17 of the said Federal Law the possibility of their establishment by a separate federal law simultaneously with the adoption of the federal law on the federal budget for the corresponding financial year ( which was implemented only in 2001).
4.2. On January 1, 2005, the Federal Law of August 22, 2004 N 122-FZ "On Amendments to the Legislative Acts of the Russian Federation and the Recognition of Invalidation of Certain Legislative Acts of the Russian Federation in Connection with the Adoption of Federal Laws" On Amendments and Additions to Federal Law "On General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of Subjects of the Russian Federation" and "On General Principles of Organization of Local Self-Government in the Russian Federation". Its main goal is to bring the system of social protection of citizens who enjoy benefits and social guarantees and who are provided with compensation in accordance with the principle of delineation of powers between federal government bodies, government bodies of the constituent entities of the Russian Federation and local government bodies, as well as the principles of the rule of law with socially oriented market economy (preamble).
Clause 4 of Article 94 of this Federal Law invalidated Article 5 of the Federal Law "On the Subsistence Minimum in the Russian Federation", which establishes the subsistence minimum for the Russian Federation as a basis for determining the minimum old-age pension. Thus, the legislator actually changed the conceptual approach to the category of the living wage in relation to pension relations.
In addition, clause 6 of Appendix No. 2 to Decree of the President of the Russian Federation of June 24, 2002 No. 648 "On Bringing Certain Acts of the President of the Russian Federation in Conformity with Federal Laws" On Labor Pensions in the Russian Federation "and" On State Pensions in the Russian Federation "was declared invalid by the Decree of the President of the Russian Federation of June 14, 1997 N 573" On measures to maintain the material situation of pensioners ", which established that, starting from January 1, 1998, the minimum old-age pension with a total length of service equal to that required for appointment a full pension, taking into account the compensation payment provided for by the legislation of the Russian Federation, cannot be less than 80 percent of the subsistence minimum for a pensioner, determined in accordance with the legislation of the Russian Federation (clause 1).
Thus, the categories "minimum old-age pension" and "subsistence minimum" were excluded from the legal regulation of pension relations, which - in the absence of other objective criteria of social assistance, orienting towards guaranteeing the necessary level of normal life for persons who have reached retirement age and who are disabled of the II group, labor veterans and home front workers, - should be regarded as a violation by the legislator of the requirement arising from the constitutional principle of respect and protection of human dignity, provide everyone who, due to objective circumstances, has lost the ability to achieve a naturally determined material level, the opportunity obtaining the minimum required set of social benefits, which, within the framework of the current legal regulation, is determined by the normative category "subsistence minimum in a constituent entity of the Russian Federation".
This is confirmed by the legal position of the Constitutional Court of the Russian Federation, expressed in the Decree of April 23, 2004 N 9-P on the case of checking the constitutionality of certain provisions of the federal laws "On the federal budget for 2002", "On the federal budget for 2003," On the federal budget for 2004 "and its annexes: since, on the one hand, the federal budget should be based on the principles of balance, reliability and reality, and on the other, the Russian Federation as a legal and social state cannot arbitrarily refuse to fulfill the public law obligations, the federal legislator has the right to suspend the payment of monthly monetary compensation, only by providing for an appropriate mechanism for appropriate compensation; its forms and methods may change, but the volume should not decrease.
Within the meaning of this legal position, which is also significant in the field of pension relations, the federal legislator, when amending the criteria for assessing the minimum level of pension provision, the result of which is a decrease in the material security of the relevant categories of citizens, in any case should provide for adequate, effective criteria for social support, in aggregate with a pension subject to timely indexation that would cover those costs that correspond to the subsistence minimum in a constituent entity of the Russian Federation.
4.3. Excluding from the legislative regulation of pension relations the category "the minimum size of an old-age labor pension" and, in essence, abandoning the establishment of pensions in accordance with the amount of the subsistence minimum for citizens who acquired the right to receive an old-age labor pension before the entry of the Federal Law "On labor pensions in the Russian Federation "in force, the federal legislator proceeded from the fact that the monthly provision of the relevant categories of citizens, to which the citizen P.F. Enborisov, is a system of social support measures provided to such persons at various levels of public authority in accordance with their legal status, and is not limited to only one pension payment.
Thus, the applicant has the right to count on social assistance in accordance with the following federal laws:
of November 24, 1995 "On social protection of disabled people in the Russian Federation", acting in conjunction with the provisions of Article 154 of the Federal Law of August 22, 2004 N 122-FZ and suggesting, in particular, the provision of disabled people with a discount of at least 50 percent on the payment of housing (in the houses of the state or municipal housing stock) and payment of utilities (regardless of the ownership of the housing stock) (part thirteen of Article 17), as well as providing disabled people of group II from January 1, 2005, a monthly cash payment in the amount of 550 rubles and a set of social services, and from January 1, 2006, at the choice of the citizen, either preserving the specified procedure for receiving social support, or receiving a monthly cash payment in the amount of 1,000 rubles (Article 28.1);
of August 2, 1995 "On social services for elderly citizens and disabled people", which provides for measures of stationary, semi-stationary and home-based social services for disabled people (Chapter III);
of July 17, 1999 "On State Social Assistance", the provisions of Articles 61 and 62 of which provide for the provision of such social services to disabled persons as additional free health care, including providing the necessary medicines on prescriptions of a doctor (paramedic), providing, if there is a medical indication, a voucher for sanatorium treatment, free travel on suburban railway transport, as well as on intercity transport to the place of treatment and back.
Consequently, the applicant's arguments that her constitutional rights enshrined in Articles 20, 21 and 39 of the Constitution of the Russian Federation are violated by the provision of paragraph 8 of Article 14 of the Federal Law "On Labor Pensions in the Russian Federation", which allows the establishment of an old-age labor pension in an amount smaller than the value of the subsistence minimum in a constituent entity of the Russian Federation, should be assessed taking into account the action of the entire system of social support measures (some of which are directly linked to the indicators of the subsistence minimum, for example, drug provision), designed to ensure that the citizen meets the minimum natural needs.
4.4. Thus, paragraph 8 of Article 14 of the Federal Law "On Labor Pensions in the Russian Federation" in the system of the current legal regulation of social security implies the establishment for persons who have acquired the right to receive an old-age labor pension in full size before the entry into force of this Federal Law, as well as those who are disabled of the II group, labor veterans and home front workers, the minimum size of an old-age retirement pension, expressed in the amount of its basic and insurance part, which, together with other measures of social support and taking into account the application of the mechanism timely indexation of pension payments would be, in any case, not lower than the subsistence minimum of a pensioner in a constituent entity of the Russian Federation.
In the process of reforming the social security system, the federal legislator should guarantee the specified persons such an amount of retirement pension for old age, which, together with other measures of social support, would allow them to meet the minimum natural needs, the cost estimate of which - within the framework of the current legal regulation - is the subsistence minimum in the subject Of the Russian Federation, where they live, and thus would not question the possibility of a decent life for a pensioner, the exercise by him as a citizen of other individual rights and freedoms proclaimed by the Constitution of the Russian Federation.
Based on the foregoing and guided by clauses 2 and 3 of part one of Article 43 and part one of Article 79 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", the Constitutional Court of the Russian Federation
defined:
1. Clause 8 of Article 14 of the Federal Law "On Labor Pensions" in its constitutional and legal interpretation arising from the decisions of the Constitutional Court of the Russian Federation and this Determination that remain in force, provides for the establishment of persons who have acquired the right to receive an old-age labor pension in full up to the entry into force of the said Federal Law, as well as those who are disabled of the II group, labor veterans and home front workers, the minimum size of an old-age retirement pension, expressed in the amount of its basic and insurance part, which, together with other types of social security and taking into account the application of the mechanism of timely indexation of pension payments would be, in any case, not lower than the subsistence minimum of a pensioner in a constituent entity of the Russian Federation.
2. To recognize the complaint of the citizen Enborisova Praskovya Fedorovna not subject to further consideration at the session of the Constitutional Court of the Russian Federation, since to resolve the issue decided by the applicant, the final decision provided for in Article 71 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation" in the form of a decision is not required.
3. The determination of the Constitutional Court of the Russian Federation on this complaint is final and not subject to appeal.
The chairman
The Constitutional Court
Russian Federation
V. Zorkin
Secretary Judge
The Constitutional Court
Russian Federation
Y. Danilov
As of: 08.08.2005
Magazine: Handbook of personnel officer
Year: 2005
Determination of the total length of service Calculation of the insurance experience
From January 1, 2002, the establishment of labor pensions is carried out in accordance with the Federal Law of December 17, 2001 No. 173-FZ “On labor pensions in the Russian Federation” (hereinafter - the Law on labor pensions).
The specified federal law distinguishes between several types of seniority that are applied when establishing labor pensions.
To acquire the right to a pension, an insurance period of a certain duration is required, and for early old-age pensions assigned until the age of 60 and 55 years (men and women, respectively), in addition to insurance (or instead of insurance experience), it is necessary to have experience in the relevant types of work.
Determination of the total length of service
When determining the size of the pension, the total length of service acquired as of January 1, 2002 is taken into account. In order to better understand the essence of the changes that have occurred in the pension legislation in connection with the adoption of the Labor Pension Law, one should consider the specifics of calculating the total length of service.
In accordance with the new law, the labor pension can currently consist of two parts: basic and insurance. The size of the basic part of the labor pension does not depend on the length of service. AND the insurance part of the labor pension is determined from the amount of the estimated pension capital,which can be conditionally divided into two components.
One part of it is formed from actual insurance pension contributions, which are paid from the earnings (income) of a citizen starting from January 1, 2002.
The second part of the pension capital is determined by evaluating the pension rights of the insured persons acquired as of January 1, 2002, by converting (converting) them into the estimated pension capital.
As for the assessment of pension rights, it is carried out on the basis of a conditional (or actual, if the citizen was a pensioner) pension (in the law, this conditional pension is named: "the estimated size of the labor pension"), calculated according to the norms of the old pension legislation, which a citizen could receive as of January 1, 2002, taking into account the available total length of service as of this date and the average monthly earnings for 2000-2001. or for any 60 consecutive months prior to January 1, 2002.
The procedure for assessing the pension rights of insured persons is set out in Art. 30 of the Labor Pension Law.
The formula for determining the estimated pension capital (conversion) is given in clause 1 of Art. thirty:
PC \u003d (RP - warhead) x T,
where RP is the estimated size of the labor pension;
Warhead - 450 rubles. (the size of the basic part of the old-age labor pension as of January 1, 2002);
T is the expected period of payment of the old-age labor pension, equal to 144 months in 2002, subsequently this value increases annually by 6 months until it reaches 192 months, after which it increases annually by 12 months until it reaches 228 months (19 years) ... In 2005, therefore, T is equal to 162 months.
As already mentioned, RP is calculated based on the total length of service available as of January 1, 2002.
Periods of work and other activities counted in the total length of service (in accordance with clause 4 of article 30 of the Law on labor pensions):
- periods of work as a worker, employee (including employment outside the territory of Russia), a member of a collective farm or other cooperative organization; periods of other work in which the employee, not being a worker or employee, was subject to compulsory pension insurance; periods of work (service) in paramilitary guards, special communications bodies or in a mine rescue unit, regardless of its nature; periods of self-employment, including in agriculture;
- periods of creative activity of members of creative unions of writers, artists, composers, cinematographers, theatrical figures, as well as writers and artists who are not members of the corresponding creative unions;
- military and service equivalent to it;
- periods of temporary incapacity for work, which began during the period of work, and the period of stay on disability groups I and II, received as a result of an injury related to work, or an occupational disease;
- the period of stay in places of detention in excess of the period appointed during the review of the case;
- the periods of receiving unemployment benefits, participation in paid work, moving to another locality from the employment service and employment.
All these periods are counted in the total length of service in the calendar order (one month of work and other activities for one month of experience).
As you can see, this list does not include many periods that, at first glance, were included in the total length of service when calculating pensions under the old legislation (according to the RF Law of 20.11.90 No. 340-1 “On State Pensions in the Russian Federation”). For example, among them there is no period of study, period of caring for children, period of residence of wives (husbands) of military personnel doing military service under contract, together with husbands (wives) in areas where they could not work in their specialty due to lack of employment opportunities, the period of residence abroad of the wives (husbands) of employees of Soviet institutions and international organizations, etc. In addition, as mentioned above, when calculating the total length of service for assessing the pension rights of insured persons, the preferential procedure for calculating the length of service that existed before is not applied (for example, the period of participation in hostilities during the war years was counted in threefold length of service, work in the rear - doubled, conscript service - doubled, etc.).
However, it seems so only at first glance.
Recall that from February 1, 1998 to January 1, 2002, there were two procedures for calculating (calculating) pensions in the Russian Federation, which operated in parallel with each other: using the individual coefficient of a pensioner (IKP; in accordance with the Federal Law of July 21, 1997 No. 113-FZ “On the procedure for calculating and increasing state pensions”) and without applying the individual pensioner's coefficient.
If a citizen had the right to both procedures for calculating a pension (and only non-working pensioners had such a right, since pensions were not paid to working pensioners using IKP), then he could choose any of them.
When determining the individual coefficient of a pensioner, the length of service did not include all periods of labor and other socially useful activities, which were taken into account when calculating a pension without an ICP. Therefore, all other things being equal, the length of service when calculating a pension with an IKP, as a rule, was less than when calculating a pension without an IKP.
When determining the IKP, the length of service included only periods of work, military and equivalent service and some other periods listed in the law. In particular, there was no study among them (that is, the periods of study were not included in the length of service when calculating the pension with IKP). At the same time, all periods were counted in the seniority in a calendar order (one month of work - for one month of seniority). Meanwhile, when calculating a pension without an IKP, not only all types of work, but also periods of other socially useful activities provided for by law, including the time of the same study, periods of stay with husbands (wives) in remote garrisons, were included in the seniority. e. In cases established by law, the relevant periods were included in the length of service on a preferential basis.
As already noted, a citizen could choose in what order his pension would be calculated - with the use of the IKP or without the use of the IKP and, accordingly, whether the corresponding periods would be included in his total length of service, including using, in established cases, the preferential procedure for calculating the length of service or not. In most cases, the size of the pension with the use of the IKP was greater even without including all these other periods in the work experience, therefore, non-working pensioners, as a rule,! chose the option of calculating pensions using the ICP. This is due to the fact that the old-age pension without the use of the ICP could not exceed the maximum amount, which, given the total length of service, equal to that required for the appointment of a full pension, was set at the level of three minimum pension amounts. The maximum size of the preferential pension according to the List No. 1 by the decree of the Government of the Russian Federation of 18.07.02 No. 537 (especially harmful and dangerous work) was set at the level of 3.5 times the minimum old-age pension.
The minimum old-age pension as of December 31, 2001 was 185 rubles. 32 kopecks The maximum pension was still entitled to a compensation payment of 100 rubles. So consider for yourself what the maximum pension could be. Pensions with the use of IKP were not formally limited to the maximum amount. We will not present detailed calculations. Our goal is to briefly recall the previous legislation.
The formula for determining the RP (estimated size of the labor pension), set out in paragraph 2 of Art. 30 of the Law on Labor Pensions, taking into account the provisions of paragraph 4 of this article, actually reproduces the earlier formula for determining the amount of a pension using the IKP. Moreover, this formula under the new law is applied regardless of whether a citizen is working or not.
As already mentioned, two options for calculating the total length of service were used only to determine the size of the pension. When calculating the total length of service that gives the right to a pension, it included all periods of labor and other activities.
Calculation of the insurance experience
Under the new pension law, the right to an old-age pension (in addition to reaching the appropriate age) is associated with the presence of insurance (and not general labor) experience of a certain duration.
Insurance experience - the total duration of the periods of work and (or) other activities during which insurance contributions were paid to the Pension Fund of the Russian Federation, taken into account when determining the right to a labor pension, as well as other periods included in the insurance experience
The law divides the periods that can be taken into account when determining the right to a labor pension into two types.
First, these are periods of work and other activities during which insurance contributions were paid to the Pension Fund of the Russian Federation (Article 10 of the Law on Labor Pensions).
According to paragraph 2 of Art. 29 of the Law on labor pensions to the payment of insurance contributions to the Pension Fund of the Russian Federation is equal to the payment of contributions to state social insurance before January 1, 1991, the unified social tax (contribution) and the unified tax on imputed tax for certain types of activities that took place in the period before accession by virtue of the federal law under consideration.
Secondly, these are other periods included in the insurance experience. During these periods, the payment of insurance premiums (and other payments equated to them) to the Pension Fund was not made, nevertheless, by virtue of the law, they are included in the insurance period under certain conditions.
The list of such other periods is exhaustively given in Art. 11 of the Labor Pension Law:
1) the period of military service, as well as other service equivalent to it, provided for by the Law of the Russian Federation of 02/12/93 No. 4468-1 "On pension provision for persons who have served in military service, service in the internal affairs bodies, the State Fire Service, control bodies the turnover of narcotic drugs and psychotropic substances, institutions and bodies of the penal system, and their families ”;
2) the period of receipt of benefits for state social insurance during the period of temporary incapacity for work;
3) the period of care of one of the parents for each child until they reach the age of 1.5 years, but not more than 3 years in total;
4) periods of receipt of unemployment benefits, participation in paid public works and relocation by the state employment service to another locality for employment;
5) the period of detention of persons who were unjustifiably brought to criminal responsibility, unjustifiably repressed and subsequently rehabilitated, and the period of serving the sentence by these persons in places of deprivation of freedom and exile;
6) the period of care carried out by an able-bodied person for a disabled person of group I, a disabled child or for a person who has reached the age of 80.
At the same time, these periods are included in the length of service if they were preceded and (or) followed by periods of work and (or) other activities (regardless of their duration) for which insurance contributions were paid to the Pension Fund of the Russian Federation.
As we can see, this list also lacks many periods that were previously included in the total length of service when determining the right to a pension.
Accordingly, according to the general rules, periods of labor and other activities not specified in Art. 10 and 11 of the Labor Pension Law cannot be included in the insurance period. It does not matter when these periods were in time - before January 1, 2002 (i.e. before the entry into force of the Labor Pension Law) or later than this date. Necessary! remember that, according to the previous pension legislation, the right to a full old-age pension is general principles, for example, a woman had 20 years of total work experience. A pension, of course, could be assigned even with 5 years of work experience - the so-called incomplete work pension, but its size was very small, regardless of the amount of earnings that a person could receive during the period of this work. According to the Labor Pension Law, the right to an old-age labor pension on general terms arises upon 5 years of insurance experience. And if over these 5 years a citizen can form a sufficient estimated pension capital at the expense of high incomes and, accordingly, large insurance pension contributions, then the insurance part of the pension will be quite high.
It is unlikely that even without the inclusion of periods of study and other activities not specified in Art. 10 and 11 of the Law on Labor Pensions, a citizen during his entire labor activity will not gain 5 years of insurance experience.
For example, a woman can be counted in the insurance experience for the period of caring for a child until he reaches the age of 1.5 years, and if the child is not alone, then 3 years. So, to acquire the right to a pension, she only has to work for 3.5 years or, respectively, 2 years.
Another issue is when a citizen applies for the appointment of an early old-age pension (Articles 27 and 28 of the Labor Pension Law) with more early age... Such early retirement benefits may be awarded due to long work in certain harmful (dangerous) professions (positions, industries) or in certain areas (for example, in the regions of the Far North).
To acquire the right to an early retirement pension, you need to have much more experience than 5 years.
For example, to acquire the right to early appointment an old-age retirement pension upon reaching the age of 50 in connection with work in the Far North, a woman must have at least 15 calendar years of work in the Far North regions or at least 20 calendar years of work in equivalent areas and, in addition, no insurance experience less than 20 years (see subparagraph 6 of paragraph 1 of article 28 of the Labor Pension Law).
Under such conditions, without the inclusion of various periods in the insurance experience (in the 20 required years), for example, study, the right to an early retirement pension in some cases may not arise.
After the entry into force of the Law on Labor Pensions, the norms of pension legislation have already been repeatedly considered in the Constitutional Court of the Russian Federation, which adopted a number of very important decisions. Without knowledge of these decisions, the correct assignment and calculation of the labor pension in some cases is impossible.
In addition, you should know and the relevant explanations of the federal ministries responsible for uniformity in the practice of applying pension legislation.
With regard to our question, first of all, we need NAK No. 9,
2005 to get acquainted with the following decisions of the Constitutional Court of the Russian Federation: determination of the Constitutional Court dated 05.11.02 No. 320-O “On the complaint of citizen Spesivtsev Yuri Ivanovich on violation of his constitutional rights by the provisions of paragraph“ a ”of part one of Article 12 and Article 133.1 of the Law of the Russian Federation“ On State pensions in the Russian Federation "", the definition of the Constitutional Court of the Russian Federation dated 06.03.03 No. 107-О "At the request of the Sormovsky District Court of the city of Nizhny Novgorod on the verification of the constitutionality of subparagraph 2 of paragraph 1, paragraphs 2 and 3 of Article 27 and paragraphs 1 and 2 of Article 31 of the Federal of the Law “On Labor Pensions in the Russian Federation” ”, Resolution of the Constitutional Court of the Russian Federation dated January 29, 2004 No. 2-P“ In the case of checking the constitutionality of certain provisions of Article 30 of the Federal Law “On Labor Pensions in the Russian Federation” in connection with the requests of groups of deputies of the State Duma, as well as the State Assembly (Il Tumen) of the Republic of Sakha (Yakutia), the Duma of the Chukotka Autonomous Okrug and sting bami a number of citizens. "
As for the departmental acts, here you need to know NAK No. 9,
2005 clarification of the Ministry of Labor of Russia dated 17.10.03 No. 4 "On some issues of establishing labor pensions in accordance with Articles 27, 28, 30 of the Federal Law" On Labor Pensions in the Russian Federation ", approved. Resolution of the Ministry of Labor of Russia dated 17.10.03 No. 70 (issued following the results of the above definitions of the Constitutional Court), and a letter from the Ministry of Health and Social Development of Russia signed by the Minister of the NAK No. 9,
2005 M. Yu. Zurabova dated 04.06.04 No. MZ-637 to the Pension Fund of the Russian Federation “On the procedure for applying the provisions of the resolution of the Constitutional Court of the Russian Federation dated January 29, 2004 No. 2-P”.
In this article, we will not analyze in detail these decisions of the Constitutional Court, let the readers themselves, if necessary, familiarize themselves with them. In addition, we will not analyze all possible cases of calculating the length of service taking into account these decisions. We will show only the general principles of calculating the length of service, which can now be applied when determining the right to a pension and the amount of pension.
The essence of the above decisions of the Constitutional Court boils down to the fact that if a citizen has acquired any pension rights during the period of validity of the relevant regulatory legal act in which these rights were enshrined, then he can use these acquired rights when assigning a pension even if the moment of such appointment, these acts formally became invalid and new legislation is in force. Moreover, this concerns both the issue of acquiring the right to a pension and the issue of calculating the amount of pension.
So, for example, in clause 1 of the operative part of the decision of the Constitutional Court of the Russian Federation dated January 29, 2004 No. 2-P it is stated: the norm of clause 4 of Art. 30 of the Law on Labor Pensions, by virtue of which - in conjunction with paragraph 2 of Art. 31 of the same law (and in this paragraph, in particular, it is said that from the date of entry into force of the Law on Labor Pensions, the Law of the Russian Federation "On State Pensions in the Russian Federation" and the Federal Law "On the Procedure for Calculating and Increasing State Pensions") - the preferential (multiple) procedure for calculating the total length of service is excluded and the inclusion of some non-insured periods in the total length of service is canceled when calculating the estimated size of the labor pension in order to assess the pension rights of insured persons as of January 1, 2002 by converting (converting) them into the calculated retirement! capital, according to its constitutional and legal meaning in the system of norms, cannot serve as a basis for worsening the conditions for exercising the right to pension security, including the amount of pension, which the insured person was counting on before the introduction of the new legal regulation (regardless of whether he developed general or special work experience in whole or in part).
In this regard, the Ministry of Health and Social Development of the Russian Federation, in its letter to the Pension Fund of the Russian Federation dated 04.06.04 No. MZ-637, reported the following:
“When establishing a pension before January 1, 2002, the norms of the Law of the Russian Federation of November 20, 1990 No. 340-I“ On State Pensions in the Russian Federation ”were applied. These norms provided for both the preferential calculation of general and special length of service in the exercise of the right to a pension, including the determination of its size without using the individual pensioner's coefficient, and the calendar calculation of the specified length of service when determining its size using the individual pensioner's coefficient.
The Federal Law “On Labor Pensions in the Russian Federation” does not provide for the preferential calculation of the insurance period when determining the right to a labor pension, as well as the total length of service when assessing the pension rights of insured persons by converting it into the estimated pension capital as of January 1, 2002.
The Constitutional Court of the Russian Federation, by its resolution of January 29, 2004 No. 2-P, established that the norms of the Federal Law "On Labor Pensions in the Russian Federation" "in their constitutional and legal meaning in the system of norms cannot serve as a basis for worsening the conditions for exercising the right to pension provision, including the amount of the pension that the insured person counted on before the new legal regulation came into effect (regardless of whether he has developed general or special work experience in full or in part). ”
Taking into account the above, when determining the right to a labor pension, the calculation of the insurance experience and (or) the length of service in the relevant types of work that took place before the entry into force of the Federal Law "On Labor Pensions in the Russian Federation" can be made in accordance with the norms of the effective as of December 31, 2001 No. legal regulation (regardless of the length of service on the specified date) ... "
Thus, if, when calculating the insurance experience and length of service in the relevant types of work strictly in accordance with the norms of the Law on Labor Pensions and regulatory legal acts adopted for the purpose of its implementation, the citizen does not have enough length of service (insurance and (or) length of service to acquire the right to a pension) on the relevant types of work), then the corresponding periods of labor and other activities before January 1, 2002 can be counted in the length of service in the event that these periods were counted in the corresponding length of service according to the norms of the previous pension legislation.
For example, a woman studied at the institute for 5 years. Then she worked at a research institute for a year, got married, and was a housewife for a long time. In 1990, she left with her diplomat husband abroad, where she lived for 15 years and did not work. Upon arrival in Russia, she also did not work. Having reached the age of 55 in 2005, she applies for an old-age retirement pension. Strictly according to the norms of the Law on Labor Pensions, she has only one year of insurance experience, in connection with which she does not seem to have the right to a labor pension. But taking into account the named decisions of the Constitutional Court and the explanations of the ministries to her, the period of study and the period of residence abroad (the period of residence no more than 10 years, as provided for by the previous pension legislation) may be included in the insurance experience, if these periods were before January 1, 2002. She meets the specified conditions, and thus, the woman gains 5 years of insurance experience, and she acquires the right to a pension.
With regard to the total length of service used to assess the pension rights of insured persons by conversion (transformation) into the estimated pension capital, a similar principle applies here.
In accordance with paragraph 2 of the clarification of the Ministry of Labor of Russia dated 17.10.03 No. 4 when assessing the pension rights of the insured person in accordance with Art. 30 of the Law on Labor Pensions, the estimated size of the labor pension (that is, the amount of the conditional pension that a citizen could receive on 31.12.01, taking into account the available experience on the specified date and the corresponding earnings - "RP"), at the request of the citizen, can be calculated based on stipulated by the legislation in force before the entry into force of the Law on Labor Pensions, the amount of pension calculated without applying the individual coefficient of the pensioner (including the rules for calculating the total length of service, special length of service and the average monthly earnings of a pensioner) and determined taking into account the duration of the total length of service of this citizen by as of January 1, 2002 and his average monthly earnings for 2000 - 2001. or for any 60 consecutive months prior to January 1, 2002.
Thus, if it is beneficial for a citizen, then when assessing pension rights, the estimated size of the labor pension (RP) may not be determined in the manner set out in paragraph 2 of Art. 30 of the Law on Labor Pensions (similar, as mentioned above, to the calculation of pensions using the ICP according to the norms of previous legislation, when various periods of socially useful activity are not included in the total length of service), and in the manner previously provided for determining the amount of a pension without applying IKP. In the second case, the total length of service includes periods of study, periods of residence of wives (husbands) of military personnel in remote garrisons, periods of residence of wives of diplomats, etc. The corresponding periods are included in the length of service on a preferential basis (for example, a month of work in the Far North - for one and a half months of experience).
However, it should be remembered that in this case, all the restrictions established by the previous legislation for determining the amount of the pension, including the restrictions on the maximum amount of the pension, also apply. And the maximum amount in this case can be applied only if, as of January 1, 2002, the citizen has worked out seniority that previously gave the right to a full old-age pension (i.e., if the pension on a general basis is 25 and 20 years, respectively, for men and women ). If there is no such length of service, then the “RP” will be calculated according to the rules that were in force earlier for calculating the pension for incomplete length of service (in proportion to the available length of service). Therefore, in the vast majority of cases, the second option for calculating "RP" will be unprofitable.
The decisions of the courts in our country, as you know, are not sources of law - they relate only to a specific case and the rights of specific citizens. But the Constitutional Court of the Russian Federation makes special decisions: it assesses the constitutionality of the laws applied, and the conclusions drawn when considering a citizen's complaint apply to everyone. In this article, we have collected information about those decisions that relate to the pension rights of citizens.
The Constitutional Court of the Russian Federation (hereinafter - the Constitutional Court of the Russian Federation, or the Court), by virtue of its legal status, goals and objectives, the subject of activity, place in the system of state bodies, plays an important and, without exaggeration, a unique role in resolving various kinds of legal problems, including of a social nature. ... In our country, the Court exercises constitutional judicial control or constitutional justice, the purpose of which is to protect the foundations of the constitutional order, fundamental human and civil rights and freedoms, to ensure the supremacy and direct action of the Constitution throughout the territory of our country.
POWERS AND DECISIONS OF THE CONSTITUTIONAL COURT OF THE RF
Note!
The Constitutional Court of the Russian Federation verifies the constitutionality of the applied law on complaints of violation of constitutional rights and freedoms of citizens
The powers, procedure for the formation and activities of the Constitutional Court of the Russian Federation are established on the basis of Part 3 of Art. 128 of the Constitution of the Russian Federation by the Federal Constitutional Law of 21.07.1994 No. 1-FKZ "On the Constitutional Court of the Russian Federation" (hereinafter - Law No. 1-FKZ). According to Art. 1 of this Law, the Constitutional Court of the Russian Federation independently and independently exercises judicial power through constitutional proceedings. For us, in the light of the topic of this article, it is important that the Constitutional Court of the Russian Federation has the right to check the constitutionality of the law applied in a particular case on complaints of violation of constitutional rights and freedoms of citizens.
The reason for the consideration of the case in the Court is an appeal in the form of a request, petition or complaint that meets the requirements of Law No. 1-FKZ, and the basis is the uncertainty about whether a regulatory legal act complies with the Constitution of the Russian Federation.
Based on the results of consideration of appeals, hearings of cases, the Constitutional Court of the Russian Federation makes decisions, which, according to their content and nature, are subdivided into decisions and definitions.
Decisions are made on the merits of issues concerning:
1) compliance with the Constitution of the Russian Federation of normative legal acts, agreements between government bodies of the Russian Federation and government bodies of its subjects, agreements between government bodies of constituent entities of Russia, as well as international treaties that have not entered into force, to which our country is a party;
2) resolving disputes about competence between various government bodies (both federal and regional);
3) verification of the constitutionality of the law on complaints from citizens and at the request of the courts;
4) interpretation of the Constitution of the Russian Federation.
In other cases, the Court adopts rulings.
So, the decision of the Constitutional Court of the Russian Federation to refuse to accept any appeal for consideration is formalized in a definition. This determination is based on the fact that the resolution of the issue raised in the appeal is beyond the jurisdiction of the Court, or the complaint submitted by the applicant does not meet the established requirements.
Note!
Resolutions and determinations of the Constitutional Court of the Russian Federation are obligatory throughout the territory of our country for all representative, executive and judicial bodies of state power, local authorities, legal entities and individuals
Let us give as an example the Definition of the Constitutional Court of the Russian Federation of 15.07.2010 No. 1011-0-0 "On the refusal to accept for consideration the complaint of the citizen Chumakova Irina Evgenievna on violation of her constitutional rights by paragraph 2 of Article 10 and paragraph 2 of Article 29 of the Federal Law" On labor pensions in the Russian Federation "" (hereinafter referred to as the Law on Labor Pensions) in terms of not counting the length of service required for the appointment of an old-age labor pension, the period of labor activity after December 1, 1991 in organizations and institutions of the Republic of Azerbaijan.
The Constitutional Court of the Russian Federation, taking into account that the legal regulation of the issues of offsetting certain periods of work in the insurance experience, provided for by the Law on Labor Pensions, as aimed at implementing the principle of universality of pension provision, the formation of pension rights of citizens, their acquisition of the right to receive a labor pension, is consistent with the requirements Constitution of the Russian Federation, noted that the resolution of the issue of offsetting the working hours on the territory of Azerbaijan after December 1, 1991 in the insurance experience of the applicant, who was not insured in the Russian state social insurance system during this period, does not fall within the competence of the Constitutional Court of the Russian Federation, since it is possible only through adoption of an appropriate international agreement with the participation of the Russian Federation and the Republic of Azerbaijan or a special law. In this regard, the Court refused to Chumakova I.E. in admitting for consideration of her complaint.
There are definitions in which the Constitutional Court of the Russian Federation actually resolves the issue raised in the appeal, revealing the constitutional and legal meaning of the relevant norms, but taking into account the previously formed legal position and the ruling made by it in another case, which has legal force. Such cases are possible when the previous decision is applicable to the subject of the complaint.
It is indicative of the RF Constitutional Court ruling No. 320-0 of 05.11.2002 "On the complaint of citizen Yuri Ivanovich Spesivtsev about violation of his constitutional rights by the provisions of clause" a "of the first part of Article 12 and article 133.1 of the Law of the Russian Federation" On state pensions in the Russian Federation " which the Constitutional Court of the Russian Federation, using the legal position set forth in earlier resolutions that pensions awarded to citizens in connection with work or other activities are deserved by previous labor, recognized the provision of legislation that did not allow the appointment of preferential pension a person who, prior to the entry into force of the new legal regulation, acquired the right to it (who has developed the necessary experience) in accordance with the previously effective regulatory legal acts.
The decisions of the Constitutional Court of the Russian Federation are obligatory throughout the territory of the Russian Federation for all representative, executive and judicial bodies of state power, local government bodies, enterprises, institutions, organizations, officials, citizens and their associations (Article 6 of Law No. 1-FKZ).
Based on Art. 79 of Law No. 1-FKZ, the decision of the Constitutional Court of the Russian Federation is final and not subject to appeal, it acts directly and does not require confirmation by other bodies and officials.
When do the decisions of the Constitutional Court of the Russian Federation come into force?
The decision of the Court, rendered following the results of the consideration of the case scheduled for hearing at the session of the Constitutional Court of the Russian Federation, shall enter into force immediately after its announcement, and the decision of the Court, adopted in accordance with the established procedure without holding a hearing, from the date of its publication. At the same time, the Constitutional Court of the Russian Federation does not hold a hearing if it comes to the conclusion that the provisions of the normative legal act contested by the applicant are similar to the norms previously recognized as inconsistent with the Constitution of the Russian Federation by the decision of the Court, which remains in force.
THE IMPORTANCE OF THE DECISIONS OF THE COP OF THE RF IN PENSION CASES
It is of fundamental importance that normative legal acts or their individual provisions, recognized as unconstitutional, become invalid.
Is it possible to refer directly to the decision of the Constitutional Court of the Russian Federation when establishing a pension?
The decisions of the Constitutional Court of the Russian Federation actually participate in the process of legal regulation and affect the rights of citizens. It is fundamentally important whether any state body, including a court, or an official, when deciding a specific case falling within its competence, can refer directly to the decision of the Constitutional Court of the Russian Federation? There will be an affirmative answer to such a question when establishing a pension.
Social issues are often subject to constitutional review. This is due to the importance of the right to social security for citizens, its inextricable relationship with the right to life. At the same time, the conditions for granting the right to a pension are extremely important and affect the interests of all citizens of our country. Note that the increase in the number of applications to the Constitutional Court of the Russian Federation on pension issues was influenced by the implementation of the pension reform, and this is understandable, given the fundamental changes that have occurred in the conditions for determining the right to a pension and calculating its size.
The most important decisions of the Constitutional Court of the Russian Federation on issues related to the establishment and payment of labor pensions are given in table.
Information provided in table, allow us to conclude that without the decisions of the Constitutional Court of the Russian Federation, the exercise of pension rights by citizens would be carried out on other conditions, which are now recognized as worsening. In essence, for persons who believe that their pension rights are infringed upon by any normative legal act or its incorrect application, the Constitutional Court of the Russian Federation is "the ultimate truth" or "the last chance", at least on the territory of our country, to achieve a positive decisions themselves in accordance with the principles of law and justice.
The main decisions of the Constitutional Court of the Russian Federation affecting the pension rights of citizens
| Decision of the Constitutional Court of the Russian Federation | Summary legal position and decisions of the Constitutional Court of the Russian Federation | Legal implications for the pension rights of citizens in practice |
|---|---|---|
| Resolution of 10.16.1995 No. 11-P"In the case of checking the constitutionality, Article 124 of the Law of the RSFSR of November 20, 1990" On State Pensions in the RSFSR "in connection with the complaints of citizens G.G. Arderikhin, N.G. Popkov, G.A. Bobyrev, N.V. Kotsyubka ". Subject matter -payment of pensions to citizens in prison |
Working citizens, including those who are in prison, through the system of compulsory insurance contributions to the Pension Fund of Russia, by deducting a part of their earnings, participate in the formation of funds going to pay labor pensions. Thus, these pensions are earned, earned by previous labor. Deprivation of a pensioner during his stay in places of deprivation of liberty of a labor pension by suspending its payment is a limitation of the constitutional right to social security. The provision of Art. 124 of the Law of the RSFSR of 20.11.1990 "On state pensions in the RSFSR" was recognized as inconsistent with the Constitution of the Russian Federation insofar as it establishes the suspension of the payment of labor pensions during the imprisonment of a pensioner by a court verdict |
Citizens in places of deprivation of liberty have the right to receive the assigned pension. This decision is taken into account in the Criminal Executive Code of the Russian Federation and in the pension legislation, which entered into force on January 1, 2002. |
| Resolution of 15.06.1998 No. 18-P "In the case of checking the constitutionality of the provisions of Articles 2, 5 and 6 of the Law of the Russian Federation of July 2, 1993" On the payment of pensions to citizens leaving the Russian Federation for permanent residence "in connection with citizens' complaints. Subject matter - payment of assigned pensions to persons who left abroad before July 1, 1993 or did not leave the territory of Russia |
The rights of a citizen in the field of pension provision are derived from his work or other promisingly useful activity. Pensions assigned in connection with work are earned, earned by previous work, service, performance of certain obligations that are significant for society. In this regard, the termination of both the accrual and payment of labor pensions to citizens who have left for permanent residence outside the Russian Federation, for a while their residence abroad is a limitation of the constitutional right to social security. The provisions of individual articles of the Law of the Russian Federation of 07/02/1993 "On the payment of pensions to citizens leaving the Russian Federation for permanent residence" were recognized as inconsistent with the Constitution to the extent that they allowed the deprivation of pensioners of the right to receive the labor pensions assigned to them if they left for border before July 1, 1993, or after this date, but did not live immediately before leaving on the territory of the Russian Federation |
Citizens who received a pension calculated on the basis of the norms of the legislation of the Russian Federation, who left the country before July 1, 1993, as well as those who did not leave the territory of Russia, are given the right to restore the payment of the Russian pension and receive it abroad. The decision is taken into account in the Federal Law of 06.03.2001 No. 21-FZ "On the payment of pensions to citizens leaving for permanent residence outside the Russian Federation" |
| Determination dated 01.03.2001 No. 49-О "On the complaints of citizens Vladimir Yakovlevich Martens and Larisa Stepanovna Stolpner about the violation of their constitutional rights by the provisions of Articles 3 and 117 of the Law of the Russian Federation" On State Pensions in the Russian Federation "." Subject matter - the right of citizens of the Russian Federation living abroad to establish a pension |
When identifying the constitutional and legal meaning of Art. 4 of this Law, the legal position of the Constitutional Court of the Russian Federation was taken into account, expressed in the resolution of the Constitutional Court of the Russian Federation of January 15, 1998, No. 18-P. Establishment of differences in the right of citizens of the Russian Federation to receive labor pensions, conditioned solely by such a circumstance as the place of permanent residence - on the territory of the Russian Federation or outside it, cannot be recognized as justified and reasonable |
Russian citizens living abroad are granted the right to establish a pension in connection with work (service). The decision was taken into account in the Federal Law of December 15, 2001 No. 166-FZ "On State Pension Provision in the Russian Federation" and the Law on Labor Pensions |
| Determination dated 04.12.2003 No. 444-О "On the complaint of citizen Isaak Lvovich Kogan about the violation of his constitutional rights by the provision of paragraph 1 of Article 1 of the Federal Law" On additional monthly material support of citizens of the Russian Federation for outstanding achievements and special services to the Russian Federation. Subject matter - the right of citizens of the Russian Federation living abroad to additional material support (hereinafter referred to as DMS) for achievements and services to the Russian Federation |
The legal position of the Constitutional Court of the Russian Federation, set forth in the decree of 06/15/1998 No. 18-P and the definition of 03/01/2001 No. 49-0, as being of a general nature, is applicable in this case, since the payment established by the specified Federal Law actually acts as a method of increasing the level of pension provision for citizens. Linking the right to receive a DME with residence on the territory of Russia means a refusal of the state from its obligations on social security with outstanding achievements and special services to it, citizens of the Russian Federation who have chosen other states for their residence. Unlawful establishment of such dependence and thereby deprivation of the named right of citizens of the Russian Federation living outside the Russian Federation, the right to DME for outstanding achievements and special services to the Russian Federation, - loses its force and is not subject to application |
Citizens of the Russian Federation living abroad are granted the right to DME for outstanding achievements and special services to the Russian Federation. |
| Resolution of January 29, 2004 No. 2-P "In the case of checking the constitutionality of certain provisions of Article 30 of the Federal Law" On Labor Pensions in the Russian Federation "in connection with the requests of groups of deputies of the State Duma, as well as the State Assembly (Il Tumen) of the Sakha Republic (Yakutia), the Duma of the Chukotka Autonomous Okrug and complaints of a number citizens ". Subject matter - calculation of seniority for pension purposes in connection with a change in legal regulation |
The Law on Labor Pensions does not provide for the preferential calculation of the insurance period when determining the right to a labor pension, as well as the total length of service when assessing the pension rights of insured persons by converting it into the calculated pension capital as of January 1, 2002. The provisions of this Law insofar as they, when assessing the pension rights of insured persons as of January 1, 2002, by converting (converting) them into the estimated pension capital, exclude the preferential (multiple) procedure for calculating the total length of service and do not allow taking into account in general work experience, some periods of socially useful activity, included in it by the previous legislation, do not contradict the Constitution of the Russian Federation. At the same time, they - in their constitutional and legal meaning in the system of norms - cannot serve as a basis for worsening the conditions for the realization of the right to pension security, since they do not prevent citizens from assessing the pension rights acquired by him before January 1, 2002, including in part concerning the calculation of seniority and the amount of pension, according to the norms of the previous legislation |
The possibility of calculating, when determining the right to a labor pension, the insurance experience acquired before the entry into force of the Law on Labor Pensions, according to the norms of the Legal Regulation in force as of December 31, 2001 (regardless of the length of service on the specified date). The possibility of calculating when assessing pension rights as of January 1, 2002, work experience both on a preferential basis and on a calendar (depending on the option for determining the amount of pension). Amendments to the Law on Labor Pensions, taking into account the decision regarding the assessment of pension rights, were introduced by Federal Law No. 213-FZ of July 24, 2009 |
| Resolution of 03.06.2004 No. 11-P "In the case of checking the constitutionality of the provisions of subparagraphs 10, 11 and 12 of paragraph 1 of Article 28, paragraphs 1 and 2 of Article 31 of the Federal Law" On Labor Pensions in the Russian Federation "in connection with the requests of the State Duma of the Astrakhan Region, the Supreme Court of the Udmurt Republic, Birobidzhan city the courts of the Jewish Autonomous Region, the Yeletsky City Court of the Lipetsk Region, the Levoberezhny, Oktyabrsky and Sovetsky District Courts of the city of Lipetsk, as well as complaints from a number of citizens. Subject matter - the right to early assignment of an old-age retirement pension for employees of non-governmental institutions for children, healthcare institutions, theaters and theater and entertainment organizations |
In the current system of legal regulation of pension provision, proceeding from the fact that the early assignment of an old-age retirement pension to persons engaged in pedagogical, medical or creative activities on stage is mainly aimed at protecting against the risk of loss of professional ability to work before reaching the general retirement age, differences in the conditions of acquiring the right to early assignment of an old-age pension, which are established solely by such a criterion as the form of ownership (i.e. depend on whether the institutions in which this activity was carried out are state, municipal or not), cannot be considered justified with the point of view of the requirement of equality arising from the Constitution of the Russian Federation in relation to the rights guaranteed by its Article 39. The provisions of the Law on Labor Pensions were found to be inconsistent with the Constitution of the Russian Federation, establishing as a condition for the appointment of an early retirement pension the need to carry out activities in state or municipal institutions to the extent that in the system of current legal regulation these provisions do not allow to be counted in the length of service giving early assignment of an old-age pension to persons engaged in teaching activities in institutions for children, medical and other activities to protect the health of the population in health care institutions, creative activities on stage in theaters and theater and entertainment organizations, the periods of their implementation of this activity in institutions that are not state or municipal, which were included in the length of service by the previous legislation , while there is still no legislative regulation of the procedure for the preservation and implementation of pension rights already acquired by these persons as a result of long-term professional activity |
Granting the right to an early retirement pension for old age to persons who carried out educational, medical or creative activities on stage in institutions (organizations), regardless of the form of ownership of the latter. Amendments to the Law on Labor Pensions, taking into account the decision, were introduced by Federal Law No. 319-FZ dated 30.12.2008 |
| Determination dated June 27, 2005 No. 231-О"On the complaint of citizen Galeev Konspai Amambayevich about violation of his constitutional rights by the provision of subparagraph 1 of paragraph 1 of Article 28 of the Federal Law" On Labor Pensions in the Russian Federation "." Subject matter - the right to early assignment of an old-age retirement pension for parents of children with disabilities |
The Labor Pension Law does not provide for the right to early retirement pension for fathers of a disabled person from childhood, even in cases of raising a child without a mother. Meanwhile, since the right to early assignment of a pension in this case is not conditioned by the fact of the birth of a child, the circumstance of the father's educational function in the absence of the mother can serve as a basis for differentiating the conditions for assigning a pension (according to the insurance record and age), but not for depriving the fathers of the right to it. (in fact, only on the basis of gender). Such regulation leads, in violation of the requirements of the Constitution of the Russian Federation, to a disproportionate restriction of the constitutional right of fathers of children with disabilities from childhood, who raised them without mothers, to pensions, from the point of view of fair and equal social protection of both parents. This provision is subject to cancellation (change) in accordance with the established procedure and cannot be applied by courts and other bodies and officials | Granting the right to early retirement pension for old age fathers with disabilities since childhood. Amendments to the Law on Labor Pensions, taking into account the decision, were introduced by Federal Law No. 77-FZ dated 03.06.2006 |
| Determination dated May 11, 2006 No. 187-О "On the complaint of citizen Vyacheslav Viktorovich Naumchik about violation of his constitutional rights by the provisions of paragraphs 2 and 3 of Article 3 of the Federal Law" On State Pension Provision in the Russian Federation "." Subject matter - the right to a retirement pension for military pensioners |
By securing the unconditional participation of military pensioners in compulsory pension insurance, the legislator must guarantee them the opportunity to exercise pension rights acquired within the framework of this insurance system on equal terms with other insured persons. Exception for military retirees working on labor contract, the opportunity to receive insurance coverage without giving up the military pension, taking into account the volume of accumulated insurance contributions, makes pension insurance meaningless, which in such conditions turns into an institution of withdrawing funds, which is not consistent with the goals and purpose of such insurance and leads to an infringement of their social rights. Legislative provisions insofar as they extend compulsory pension insurance to military pensioners working under an employment contract do not provide for an appropriate legal mechanism guaranteeing the establishment of the insurance part of the pension along with the pension received, taking into account the insurance contributions accumulated on their individual personal accounts in FIUs, lose their force and cannot be applied by courts, other bodies and officials as they do not comply with the Constitution of the Russian Federation | Granting the right to the insurance part of the labor pension (with the exception of its basic amount) to military pensioners who worked after dismissal from service, for example, under an employment contract and in this regard, subject to compulsory pension insurance. Amendments to the pension legislation, taking into account the decision, were introduced by the Federal Law of July 22, 2008 No. 156-FZ |
| Resolution of 10.07.2007 No. 9-P "In the case of checking the constitutionality of clause 1 of Article 10 and clause 2 of Article 13 of the Federal Law" On Labor Pensions in the Russian Federation "and the third paragraph of Clause 7 of the Rules for Accounting for Insurance Contributions Included in the Estimated Pension Capital, in connection with requests from the Supreme Court of the Russian Federation and Uchalinsky District Court of the Republic of Bashkortostan and complaints of citizens A.V.Dokukin, A.S. Muratov and T.V. Shestakova ". Subject matter - the right to a labor pension in the event that the employer did not pay insurance premiums for them to the Pension Fund |
The provisions of the legislation were recognized as inconsistent with the Constitution of the Russian Federation to the extent that the regulatory provisions contained in them in conjunction with other legislative prescriptions governing the conditions for the appointment and size of labor pensions, - in the absence in the current regulation of sufficient guarantees for the unimpeded implementation of the pension rights of insured persons who worked under an employment contract and fulfilled the conditions provided for by law for acquiring the right to a labor pension, in case of non-payment or incomplete payment by the insured (employer) of insurance premiums for certain periods of work of persons - they allow not to include such periods in their insurance period, taken into account when determining the right to a labor pension , and reduce the size of its insurance part when establishing a labor pension. In order to ensure in these cases the right of insured persons who worked under an employment contract to a labor pension, the federal legislator should establish a legal mechanism that guarantees the implementation of pension rights acquired by them in the mandatory pension insurance system, including the source of payment of that part of the insurance coverage that is not covered insurance premiums. Until the legislator establishes legal regulation, based on the principle of direct action of the Constitution of the Russian Federation and taking into account the specifics of relations between the state and the FIU and between the state, policyholders and insured persons, the right of insured persons who worked under an employment contract to receive a labor pension in case of non-payment or improper payment by their employers, insurance contributions to the PFR should be provided by the state in order to fulfill the obligation for the insured to transfer the necessary funds to the PFR in favor of those persons who are assigned a labor pension, at the expense of the federal budget |
The possibility of calculating the insurance period to determine the right to a labor pension and calculating the amount of its insurance part, based on the compulsory pension insurance premiums assessed but not paid (partially paid) to the PFR. The expenses of the Pension Fund of the Russian Federation in the part exceeding funds from the payment of insurance contributions, including due to non-payment of the accrued pension contributions by the policyholders, are compensated to the Fund at the expense of budgetary appropriations. As noted by the Constitutional Court of the Russian Federation in the determination of November 20, 2007 No. 798-О-О, starting from the date of the promulgation of the decree, the calculation of the insurance experience of insured workers and the determination of the amount of the insurance part of their labor pension should be carried out taking into account all the work they have worked out on the date of establishment (recalculation) pensions of periods of employment, including unpaid (partially paid) insurance premiums (regardless of when they occurred - before or after July 10, 2007) |
For the legislator, the decisions of the Court, as well as the legal positions formulated in them, serve as a guideline when developing new laws. However, as can be seen from the table, the legislator does not always strive to timely implement the decisions of the Constitutional Court of the Russian Federation and to make appropriate amendments to regulatory legal acts. At the same time, on the basis of Article 80 of Law No. 1-FKZ, in the event that by a decision of the Court a normative act is recognized as inconsistent with the Constitution in whole or in part, or it follows from the decision that it is necessary to eliminate a gap in legal regulation:
The Government of the Russian Federation, no later than three months after the publication of the decision of the Court, submits to the State Duma a draft of a new federal constitutional law, a federal law or a number of interrelated draft laws, or a draft law on amendments and (or) additions to a law recognized as unconstitutional in a separate part of it. These bills are considered by the State Duma on an extraordinary basis;
The President of the Russian Federation, the Government of the Russian Federation, no later than two months after the publication of the decision of the Court, cancel the normative act of the President of the Russian Federation or the Government of the Russian Federation, respectively, adopt a new normative act or make changes and (or) amendments to the normative act recognized as unconstitutional in its separate part.
Note! The decisions of the Constitutional Court of the Russian Federation can be applied directly
Of course, in most cases this does not affect the implementation of citizens' pension rights, since the decisions of the Constitutional Court of the Russian Federation can be applied directly. At the same time, this fact will be of fundamental importance if the decision of the Constitutional Court of the Russian Federation speaks of the need for the legislator to develop an appropriate legal mechanism, without which this decision cannot be implemented in practice.
In conclusion, we note that the Constitutional Court of the Russian Federation in its decisions expressed its legal position on many interesting issues of pension provision.
Thus, in the ruling of 12/21/2000 No. 276-О, the Court, in connection with complaints from a number of citizens, raised the topic of differentiation of the conditions for granting pensions to men and women, traditionally established in the national pension legislation.
This question is quite relevant, taking into account the last years for many reasons, the general European trend of a gradual equalization of male and female retirement ages. In a number of countries, primarily in the countries of the so-called developed democracy (Germany, Spain, Norway, Holland, Belgium, Sweden, Finland, etc.), the retirement age is already the same for both sexes.
The court, considering the above issue, came to the conclusion that, having established different retirement ages for men and women, the legislator applied differentiation based on physiological and other differences between them, as well as based on the special social role of women in society, related with motherhood, which is consistent with the provision of Part 1 of Art. 38 of the Constitution of the Russian Federation, according to which motherhood is under the protection of the state and cannot be assessed as a discriminatory restriction of constitutional rights, since such a decision of the legislator provides - within the meaning of Art. 19 of the Constitution of the Russian Federation - the achievement of genuine, not formal, equality. Thus, the constitutional rights of men cannot be considered affected by this legislative approach.
Concerned about the Constitutional Court of the Russian Federation and the level of pension provision.
In the ruling of 15.02.2005 No. 17-O on the complaint of the citizen P.F. Enborisova. in violation of her constitutional rights by paragraph 8 of Article 14 of Law No. 173-FZ, the Court concluded that in the process of reforming the social security system, the federal legislator should guarantee citizens such an amount of old-age retirement pension that, in combination with other measures of social support, would allow them to satisfy minimum natural needs, the cost estimate of which - within the framework of the current legal regulation - is the subsistence minimum in the constituent entity of the Russian Federation where they live, and thus would not call into question the possibility of a decent life for a pensioner, the exercise by him as a citizen of other rights and individual freedoms proclaimed by the Constitution of the Russian Federation ... An old-age labor pension in conjunction with other types of social security and taking into account the application of the mechanism of timely indexation of pension payments should not be lower than the subsistence minimum of a pensioner in a constituent entity of the Russian Federation.
From January 1, 2010 on the basis of Art. 12.1 of the Federal Law of 17.07.1999 No. 178-FZ "On State Social Assistance", the total amount of material support for a pensioner living in the territory of the Russian Federation, not working, whose pension is established in accordance with Russian legislation, cannot be less than the subsistence minimum of a pensioner in the subject RF. The total amount of material security for a pensioner includes: pension; additional material (social) security; monthly cash payment (including the cost of a set of social services); other measures of social support (assistance) established by the legislation of the constituent entities of the Russian Federation in monetary terms (with the exception of social support measures provided at a time).
To all non-working pensioners, the total income of which is below the named minimum, a federal or regional social supplement is established. It seems that this decision of the federal legislator is largely explained by the position of the Constitutional Court of the Russian Federation discussed above.
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3. The applicant sees an infringement of his constitutional rights in the fact that the extension of compulsory pension insurance to military pensioners working under an employment contract by the current legislation does not entail the provision of an equivalent compensation in the form of a retirement pension upon reaching the generally established retirement age. Thus, in essence, he raises the question of the unconstitutionality of the disputed provisions of Article 3 of the Federal Law "On State Pension Provision in the Russian Federation" in conjunction with the provision of paragraph 2 of Clause 1 of Article 7 of the Federal Law of December 15, 2001 "On mandatory pension insurance in the Russian Federation ", according to which the insured persons, namely the persons subject to compulsory pension insurance, are citizens of the Russian Federation who work under an employment contract.
3.1. The Constitution of the Russian Federation, securing freedom of labor, the right of everyone to freely choose their type of activity and profession, part 1; part 1), guarantees everyone social security in the cases prescribed by law, part 1), which includes the right to receive a labor pension. The implementation of this constitutional right is carried out through compulsory pension insurance.
According to the Federal Law "On Labor Pensions in the Russian Federation", citizens of the Russian Federation who are insured in accordance with the Federal Law "On Compulsory Pension Insurance in the Russian Federation" that entered into force on January 1, 2002, have the right to a labor pension, subject to the conditions stipulated by them this Federal Law (part one of Article 3).
The retirement pension assigned to insured persons in accordance with the Federal Law "On retirement pensions in the Russian Federation" consists of a base, insurance and funded parts. The basic part of the labor pension is formed at the expense of the unified social tax that goes to the federal budget. The insurance and accumulative parts of it are financed from insurance contributions for compulsory pension insurance, which have a non-tax, individually compensated nature, since when they are received in the budget of the Pension Fund of the Russian Federation, they are personified in relation to each of the insured persons and are recorded on their individual personal accounts bodies of the Pension Fund of the Russian Federation. The insurance premiums taken into account in this way form the insurance coverage, which is paid upon the occurrence of an insured event (in particular, upon reaching the retirement age). Under the current legal regulation, the size of future pension payments (insurance and funded parts of labor pension) directly depends on the amount of insurance contributions accumulated on the individual personal account of the insured person. At the same time, the insurance part of the labor pension is of a conditionally accumulative nature, financed by a pay-as-you-go method and is based on the principle of solidarity between generations.
Determining in the Federal Law "On Compulsory Pension Insurance in the Russian Federation" the circle of persons who are covered by compulsory pension insurance (insured persons), the legislator included among them citizens working under an employment contract. Taking into account the goal of compulsory pension insurance, the social and legal nature and the purpose of insurance premiums, such legal regulation itself is aimed at implementing the principle of universality of pension provision, the formation of pension rights of these persons, their acquisition of the right to receive a labor pension (its insurance and funded parts ), is consistent with the requirements of Articles 19 and (part 1) of the Constitution of the Russian Federation.
At the same time, it does not take into account the peculiarities of the legal status of those citizens working under an employment contract who are paid a seniority pension in accordance with the Law of the Russian Federation "On Pension Provisions for Persons Who Have Served Military Service, Service in Internal Affairs Bodies, State Fire Service, Bodies on the control over the circulation of narcotic drugs and psychotropic substances, institutions and bodies of the penal system, and their families. "
Securing the unconditional participation of such pensioners in compulsory pension insurance, the legislator must, as indicated in the Determination of the Constitutional Court of the Russian Federation of May 24, 2005 N 223-O, at the request of the magistrate of judicial district No. 2 of the city of Kaluga and the magistrate of judicial district No. 4 of the Soviet district of the city Nizhny Novgorod, as well as complaints of citizens I.A. Starodubov and V.N. Shishov, to guarantee them the opportunity to exercise pension rights acquired within the framework of the mandatory pension insurance system on equal terms with other insured persons.
For military pensioners working under an employment contract, unless they are among the persons entitled to receive two pensions at the same time, the labor pension, namely its basic and insurance parts, may be established and paid instead of the state pension provision; at the same time, the transfer from the pension assigned in connection with military service, to a labor pension can be carried out at any time after the emergence of the right to a labor pension and is not limited to any period. As for the funded part of the labor pension, then, as follows from paragraph 4 of Article 3 of the Federal Law "On State Pension Provision in the Russian Federation", the payment of the state pension provision does not prevent the receipt of this part of the labor pension.
The extension of compulsory pension insurance to military pensioners working under an employment contract is intended, therefore, to guarantee them the opportunity to acquire the right to receive a labor pension, to make a choice of pension.
Meanwhile current legislature does not provide for the transfer from the federal budget to the Pension Fund of the Russian Federation of funds for the formation of the estimated pension capital upon the transition of military pensioners to a retirement pension, which in most cases does not allow to ensure the appointment of a retirement pension to them in an amount exceeding their military pension. Thus, their entry into a legal relationship on compulsory pension insurance as a guarantee that provides them with the opportunity to choose a pension loses any meaning, since the choice as such in such cases is predetermined.
3.2. It does not contain the current legislation and norms that would allow the payment of such persons, if they have reached the generally established retirement age and have the necessary insurance experience, of the insurance part of the labor pension - the right to receive it can only be exercised by persons who have the right to simultaneously receive two pensions. At the same time, other insured persons working under an employment contract who, after establishing their labor pension, continue to work, have the right to an annual recalculation of the insurance part of the labor pension, taking into account the insurance contributions received on their individual personal account (paragraph 3 of Article 17 of the Federal Law "On labor pensions in the Russian Federation "), i.e. to periodically increase its size. Thus, military pensioners, who work under an employment contract on the same terms as recipients of labor pensions and participate in the compulsory pension insurance system, find themselves in an unequal position with them when exercising their right to receive insurance coverage. Thus, being included in this insurance system does not entail significant consequences for them.
Meanwhile, the Federal Law "On Compulsory Pension Insurance in the Russian Federation", as a consequence of the spread of compulsory pension insurance to certain categories of citizens, assumes the provision of appropriate insurance coverage in the event of an insured event in an amount equivalent to the amount of insurance premiums recorded on their individual personal accounts in the Pension fund of the Russian Federation.
The Constitutional Court of the Russian Federation, in its Ruling No. 223-O of May 24, 2005, as applied to individual entrepreneurs and defense lawyers - military pensioners, pointed out the inadmissibility of a provision in which the obligation imposed on them to pay for themselves insurance contributions to the budget of the Pension Fund of the Russian Federation is not accompanied by the provision of in addition to the payment of a pension due to the state pension provision, insurance coverage, taking into account the paid insurance premiums.
As follows from the legal position expressed by the Constitutional Court of the Russian Federation in the Resolution of December 23, 1999 N 18-P on the case on checking the constitutionality of certain provisions of federal laws on the tariffs of insurance contributions to state social extra-budgetary funds, equal responsibilities of citizens in bearing the burden of budget formation The Pension Fund of the Russian Federation (regardless of the entity making insurance payments in accordance with the law) also presupposes equal rights to receive appropriate insurance coverage, taking into account the paid amounts of insurance premiums.
The Constitutional Court of the Russian Federation in its decisions has repeatedly pointed out that the legislator, exercising on the basis of Articles 39 (part 2), (paragraph "c"), 72 (paragraphs "b", "g" of part 1) and 76 (part 1 and the Constitution Of the Russian Federation, the regulation of the conditions and procedure for the provision of specific types of pension provision, as well as determining the organizational and legal mechanism for its implementation, is associated, among other things, with the need to comply with the constitutional principles of justice and equality and requirements for restrictions on the rights and freedoms of citizens Part 1; Part 3, Constitution of the Russian Federation ). Differences in the conditions for the acquisition of the right to a pension by certain categories of citizens and the exercise of pension rights are permissible if they are objectively justified, substantiated and pursue constitutionally significant goals, and the legal means used to achieve these goals are proportionate to them; in the field of pensions, the observance of the principle of equality, which guarantees protection against all forms of discrimination in the exercise of rights and freedoms, means, among other things, the prohibition to introduce differences in the pension rights of persons belonging to the same category that do not have objective and reasonable justification (prohibition of different treatment persons who are in the same or similar situations) (Resolutions of the Constitutional Court of the Russian Federation of February 24, 1998 N 7-P on the case of checking the constitutionality of certain provisions of Articles 1 and 5 of the Federal Law "On tariffs of insurance contributions to the Pension Fund of the Russian Federation, the Social insurance of the Russian Federation, the State Employment Fund of the Russian Federation and in the compulsory medical insurance funds for 1997 ", dated June 3, 2004 N 11-P in the case of checking the constitutionality of the provisions of subparagraphs 10, 11 and 12 of paragraph 1 of Article 28 and paragraphs 1 and 2 Article 31 of the Federal Law "On Labor Pensions in the Russian Federation ", dated December 23, 2004 N 19-P in the case of checking the constitutionality of subparagraph 8 of paragraph 1 of Article 238 of the Tax Code of the Russian Federation).
The exception for military pensioners working under an employment contract, the opportunity to receive insurance coverage without refusing a military pension, taking into account the volume of accumulated insurance contributions, makes pension insurance meaningless, which in such conditions turns only into an institution for the withdrawal of funds, which is not consistent with the goals and purpose of such insurance and leads to the infringement of their social rights, which has no objective and reasonable justification and is incompatible with the requirements of Articles 19 (parts 1 and 2), (part 1) and (part 3) of the Constitution of the Russian Federation.
Thus, the interrelated regulatory provisions of clauses 2 and article 3 of the Federal Law "On State Pension Provision in the Russian Federation" and clause 1 of Article 7 of the Federal Law "On Compulsory Pension Insurance in the Russian Federation" - in the conditions of the current legal regulation - in the part which they, extending compulsory pension insurance to military pensioners working under an employment contract, do not provide for guarantees of providing them with appropriate insurance coverage, taking into account the amounts of insurance premiums paid, without refusing to receive a military pension, by virtue of the legal positions expressed by the Constitutional Court of the Russian Federation in the Resolutions of February 24, 1998
